tv Key Capitol Hill Hearings CSPAN June 26, 2014 9:00pm-11:01pm EDT
that, though, in this country, is the way that the senate has traditionally signaled to the president that it was ending its session. and i think that's what it would have to do. >> does it need the consent of the house to do that? >> yes, your honor, it does. >> so does it have to do that in between the two congressional sessions? >> i don't -- i think -- no, i don't think it has to. i think the senate can adopt its own rules for determining how it ends its session and how it begins a new one. i think the important point, though, is it has to communicate that to the president. so, for example, during president madison's time, the tradition was the senate would dispatch a committee to the president to inform this president that it had ended its session. so the president now knew that it was in recess and the powers that imbue upon the president during that recess had been triggered, the recess appointment power. here, ruling in our favor on the third question would, of course, call in the question no past appointees. but i would like to -- >> on the first question, does your argument depend on the fact that -- on the assumption that the possibility of a lengthy intra-session break was never even contemplated by those
who framed and ratified the constitution? because if they had thought about that, there's a real chance the senate may take a two-month break -- >> right. >> over christmas. would there be any reason why they wouldn't have wanted the recess appointment power to apply there as well as at the end of the session? >> your honor, our argument does not turn on that because to us it is not a temporal question. it's a procedural one. back then, the senate had the power not to trigger the recess. just like today, it has the power not to trigger the recess appointments power. the difference is not in principle. it's in historical context. at the time of the framing, they wanted to trigger the recess appointments power because when they left during long periods of time, they wanted the president to be able to act unilaterally since it was very difficult for them to get back. and if they didn't trigger the power, the only way the president could act unilaterally
would -- the only way the president could confirm nominees would be by convening an emergency session. highly inconvenient. the historical facts today have changed. not the principle, but the surrounding facts. and today, it is very easy for the senators to get back to washington, d.c., and so they don't want to trigger a unilateral power. they're perfectly willing to be hailed back if necessary. >> i'm not sure i understand the answer. if the purpose is to permit the president to fill vacancies when the senate is unavailable to consider nominations and the country would be harmed by having these offices vacant for a period of time, why would that not apply to any lengthy break whether it's at the end of the session or in the middle of the session? and so if you're arguing that it only applies at the end of the session, doesn't that depend on the assumption that they never thought about the possibility that there would be a lengthy break in the middle of the session? >> your honor, it is possible that they never thought about it. but even if they had, i don't
think it would matter, because i think that that the purpose that you've laid out is not quite the full purpose of the clause. the purpose was also to ensure that the president could not easily do an end run around advice and consent, which after all is the principal method of appointment. and so what they did, as they did with respect to inferior officers, is they vested with the senate the power in certain circumstances to authorize the president to act unilaterally. with respect to recesses, that authority was triggered when the senate decided to end its session. the senate did, for example, take 7 mid-session breaks of longer than 10 days prior to 1867. it is inconceivable to me that the senators at that time believed that they were entering into a recess that would have empowered the president to make unilateral appointments during those 10-, 11-, or 12-day periods. and that reflects the fact that the recess appointments clause is a contingent one that arises when the senate triggers it.
>> mr. francisco, can i ask a question about the second question presented, the "happens" question? >> yes, your honor. >> and if you put aside all the history and you look only at the language and you look only at our own modern view of what happens, that surely seems to favor your position. but if, you know, given all the statements in the founding period itself about how this is ambiguous and it might have two meanings, if you look at the dictionaries of that time -- so i went back and i looked at the oxford english dictionary, and one of the definitions of "happens" there is "chance to be," essentially the exact same definition that thomas jefferson said made this ambiguous. and we would never use "happens" in that way now. if you look at the examples that the oxford english gives they're laughable. nobody would ever say that now. but it just suggested to me that maybe what we think is pretty clear is only pretty clear because one meaning of "happens" has, you know, over 200 years -- >> sure. >> lapsed. >> well, your honor, i actually
think the word "happens" had the same meaning then as it does now, which is why at the time of the framing everyone who actually studied the issue -- madison, hamilton, both of the first two attorneys general, edmund randolph and charles lee -- agreed that it meant what it said, as did even >> no, i don't think so. essentially, thomas jefferson says it could mean one thing or the other, and the other thing that he said, which is "happens to exist," is sort of exactly this old definition, which is "happens" means "chance to be." >> and then jefferson in his other letters conceded that the recess appointments clause as it stood was going to frustrate his ability to make appointments. and he therefore -- >> i think "happens" continues to mean "chances to be." we still use it that way. but we only use it that way when it is followed by an infinitive. "i happened to see him," it means a chance that i saw him. or -- you know, the 9/11, the
destruction of the twin towers happened to occur on 9/11. but you wouldn't say -- you wouldn't say it happened on -- on 9/13, simply because it continued to be destroyed. i don't know what the oed examples that justice kagan referred to were, but i bet they used "happen" followed by an infinitive, and i think we still use it that way. >> you know, i don't remember them exactly. i just remember kind of laughing at them, as things that -- >> actually, i think i remember what they were -- >> nobody would say -- >> and they were 1483 and 1490-something, and then there was an asterisk that said "obsolete." and in fact -- in fact, i couldn't figure out what they were talking about. >> and, yes, your honor, but in addition, though, there is not just the word "happen." it's preceded by three other words, that "vacancies that may
happen." and the only purpose that those words serve is to constrain the universe of vacancies that are eligible for a recess appointment. >> well, the constitution as it first was has now been amended and it is no longer a part of the constitution, with reference to appointment of senate, uses the word "vacancy" in much the same way as the clause we're discussing here, and i think favors your position, because if a vacancy happens by resignation during the recess of the legislature then the governor can make the appointment. and you certainly wouldn't think that that could happen over 3 days -- >> exactly, your honor -- >> occur over -- i should say occur over 3 days. >> and it's even better than that because at the time of the framing, a legislator -- a governor tried to appoint somebody to the senate pursuant to the clause that had arisen where the vacancy had arisen during the legislative session rather than during the
legislative recess, and the senators actually refused to seat that individual. so, yes, that further supports our position on that. >> do you want to say anything before the -- about the language on the "happen," i support you. but the practice, and in particular, the practicalities because you say, well, the president can make an acting appointment, make a recess appointment even. i mean, you know, they have much less authority, somebody appointed in that way, much less than a person who's been confirmed by the senate. so if the government won't grind to a halt, it still faces a problem. >> and, your honor -- >> what do you want to say about that? >> that's a consequence of advice and consent. that problem arises not just when the senate takes breaks but when the senate is in session. the senate could show up every day for an hour, sit at their desks, and announce to the president -- we're not going to do anything, no nominations, no legislation, because we don't like what you're doing. and by the way, the only reason
we're showing up here at our desks and sitting here for one hour a day is because we don't want you to be able to make recess appointments. nobody would claim that the senate was in recess during those sessions. well, that is effectively what it was doing here. i would, though, like to address the practicality issue. i talked about how there have only been four recess appointments to the article iii courts that are potentially invalid since 1960. i likewise don't think, if you were to rule in our favor on the first two questions, that it would be particularly disruptive to the executive branch either. if you look at the government's appendix, i would hazard to say that most of those officials probably don't exercise much, if any, agency rule-making or adjudicatory power at all. but as to those who do, going forward the government can solve the problem through agency ratification of past decisions. going backward, there are a variety of doctrines that would limit anybody's ability to actually challenge those past actions, including, for example, the apa's 6-year statute of limitations on challenging final agency action, various finality rules that would prohibit a party from raising an issue that they could have but failed to raise in an earlier proceeding and various justiciability doctrines, like mootness
standing, and, your honor, the de facto officer doctrine, at least outside of the context of direct appeal. i think this constellation of issues probably explains why this is the first time this issue has reached this court in 225 years. this is not to say that a ruling in our favor on the first two questions wouldn't have any past impact. it would undoubtedly have some. but as this court's decisions in cases like chada and booker and blakeley make clear, this court has never shied away from enforcing the strictures of the constitution simply because it could have some impact on prior cases. here the structural protections of the constitution exist to protect the liberty of the people. they were clearly transgressed with these unprecedented appointments, and therefore we believe that the court below should be affirmed. i am happy to answer any additional questions that your honors may have. >> thank you, counsel. mr. estrada. >> thank you, mr. chief justice,
and may it please the court, as justice kagan recognized earlier in the argument, this case fundamentally is about who gets to decide whether the senate is in recess, the senate or the president? our submission today is that the senate gets to decide whether the senate is in recess. >> mr. estrada, you said in your brief that that was true within wide limits. what are the wide limits? >> this is all about how the senate chooses to arrange its affairs, justice kagan, under the rules of proceedings act. and what the court said in the ballin case was that the exercise of rulemaking authority by congress was almost absolute and beyond the challenge of any body or tribunal unless it usurped some independent
constitutional authority. the only possible offer here that the solicitor general has as to how the constitution could have been violated by the actions of the senate in arranging its own affairs is the notion that this has invaded the purported recess appointments power of the president. and the reason, as we say in our brief, why that is completely insubstantial is because, as the solicitor general recognizes in the closing two pages of its brief, the senate by the design of the constitution, the appointment clause, the primary method of appointment, has an absolute veto over nominations. the framers could not have been more clear that the standard power of appointment was a joint power of appointment. and, therefore, the solicitor general is forced to concede that this appointment power, this right that the president is asserting here as a stop on the exercise of the rulemaking authority, is a subsidiary power that only arises if the
government -- if the senate, excuse me, chooses to recess. >> is the chief justice's example before, if the senate just said, we're never in recess for purposes of appointments would that be permissible? >> if the senate says, we're never in recess, and the senate then is not in recess so that it could exercise the duties of its office as it does here, yes, it would be. if the senate says, we're checking out and going to hawaii, we'll never again be in washington, kona is very nice this time of year, that would not be permissible, because, a the adjournment clause requires the consent of the house for the senate to be not only gone for 3 days, but to be in a different place. and, second, you know, the senate cannot leave, you know, the chamber, and -- other than with the consent of the house.
and maybe if the senate has effectively given up, you know the business of legislating, in that case, maybe the president could say that it is, quote, a "recess." now, the fundamental problem with the president's position here is twofold. we have senate records. there is -- the journal clause of the constitution directs each house of the congress to have a journal of its proceedings. the journal of the senate, which is in relevant part printed in our appendix, shows that on each of the disputed dates the senate was called to order and then adjourned. it is an official record of the senate. it says the senate was called to order and then adjourned. it doesn't say two guys who happened to be senators met at a bar and had a beer. the official records of the senate say the senate was called to order and adjourned. and under the rules of
proceedings clause, that would be conclusive, full stop. >> that's the end of it, exactly the same, if this all took place during the 9-month inter-session recess in 1835. >> it would be the same unless the senate chooses to recess. >> no, no, no. exactly, same facts. same facts. >> right. >> and, therefore, in your view, the clause, even if they were all scattered to the winds in 1835, there would have been not possible for president andrew jackson, if i have that right, to make the recess appointments. >> justice breyer, the executive at the time could have attempted to construct the same type of argument that the executive is trying to construct here -- >> yes. but your view would be that the court should reject it. >> yes. but here, it is even a weaker argument because one of the oddities of the case is that as the senate has -- and the country have all moved into the
modern age, the rules of the senate tend to provide for the senate to be available at the drop of a hat. if you look, for example, at rule 9, you can always get, you know, the communications from houses from the house or from the executive. if you look at rule 26 of the senate, committees can meet whether or not the chamber is actually in session. you know, the business of the senate is ongoing. and, therefore, in the modern world, it is even much, much much different than even the hypothetical that you posited. >> you can say anything that would -- on this, if you want to, that would turn it back to the practicalities. imagine, hypothetically, that i would have thought president theodore roosevelt acted unconstitutionally when he tried to make all of his appointments, dozens and dozens, during a two-second -- >> in 1903. >> yes, yes, inter-session --
>> yes, constructive recess. >> yes, yes. >> well -- >> and by converse reasoning the congress would not have been able, in 1835, to prevent recess appointments simply by having a nearby senator show up for a -- for one second, once every 3 days, over a 9-month period. it seems to me what goes around comes around in this -- >> well, let me take that as an opportunity because i think it does raise, you know, the question to speak to the implication that the solicitor general makes in his brief, that the senate, as a body, doesn't have a view on whether it was in recess or in session. for the reason that i started out by outlouding -- by outlining -- excuse me -- the senate's official records do show that the senate was in session on each date, and therefore, the senate does have an official view. but from the practical point of
view, we do know that the senate has a view on these things. and how do we know? the president's party controls the senate. if the senate wanted to recess rule 22nd of the senate says that's not a debatable proposition. if a majority of the senate wants to recess, even before the evolution of the filibuster, non-debatable proposition. so the senate says, which is controlled by the president's party, says, we want to recess we want to go away, we don't care if the president has this power. they vote for that. house says no. what happens then? article ii, section 3 of the constitution, the fight goes to the president, and it is in that event that the president gets to adjourn them until such date as he shall see proper. so if the senate had any view that it wanted to recess, they could have had a vote, and the issue would have ended up in the white house, in the lap of the president.
he had plenary constitutional power to give himself an inter-session recess by terminating the session and have a real recess appointment power if he could find somebody whose vacancy had actually arisen at the time. but this is the cockeyed way of going about the instruments of the constitution. there is no power in the constitution to use the recess appointments clause to overcome the opposition of the senate to the president's nominees. and for all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles, there is no parade, and there is no horrible. the only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that the appointments power -- excuse me -- the appointments clause actually calls for. that was not viewed as an evil by the framers. that was what the framers unanimously agreed was going to be the principal means for appointments for the principal officers of the union.
>> mr. estrada -- if there is a 3-day recess between sessions, then your argument is that that is a recess and the president can make appointments in that time. >> justice ginsburg, that is a very interesting and somewhat difficult question. on the facts of this case, there is a substantial question, which no one really has litigated, as to whether there was, in fact, an inter-session recess, whether the first session of the 112th congress ended on the morning of january 3 and, therefore, we have the same teddy roosevelt situation, or whether by adjourning on december 30 and contemplating no further meetings until january 3 whether that in effect was a sine die adjournment that ended the first session of the congress.
if the president had the same view about the nature of the pro forma sessions, he could have taken the view about the sessions between december 17 and january 3 and could have had a better legal argument in attempting to claim that between december 30 and january 3, there was at least an arguable inter-session recess. and he did not do that. why didn't he? because by waiting until the convening of the first session -- of the second session of the 112th congress, by making an appointment on january 4 instead of the morning of january 3, he gives an extra year to his appointees to serve. that shows that this is, indeed, the bottom of the slippery slope on the recess appointments clause. it is a complete abuse of the process. it is being used for no other purpose than to overcome the senate opposition or the senate
disinclination to agree with the president's nominations. what the framers contemplated in coming up with a joint power of appointment was you have to act jointly. you have to play nice. and in a country of 300 million people, when the president wants a nominee and the senate does not agree, it is always possible for the president to come up with another nominee who is even more qualified and acceptable to the senate. the key here is acceptable to the senate. he has to be able to proffer someone to the senate that the senate is willing to engage in a joint power of appointment for. >> mr. estrada, in your earlier example, you said that if the senate decides to recess and the house doesn't approve, that the president can then do it. is it your belief that a recess
is only something that both houses have agreed to? a break in business that both houses have agreed to? >> i don't think so. it is usually the case, justice sotomayor, but not necessarily. the example i would give -- >> so what do you need why does the president have to adjourn the house in your example? >> no, i don't -- >> if the senate votes tomorrow to recess -- >> yes. >> can the president appoint, at least in your view, any vacancy that occurs during that recess? >> if the senate has been recessed without days so that the session of the senate is over, even if the president, under article ii, chooses to leave the house in session -- >> why do you need a date? in what rule makes a recess defined as something without date? >> this takes us back to the first argument, and i think the contemplation was that the
recess would be the period of time that intervened between the ending of a session of the congress and the beginning of the next. here -- >> it always had a date, because we knew january 3 was a new session. >> well, that wasn't true until the 20th amendment. you know, the date was a much different date in the original constitution. but to answer your earlier question, it is usually the case that a recess is going to be longer than 3 days, but it needn't be. if the senate finished all of its legislative business, for example, in this year on december 30, 2011, and then voted to adjourn sine die, and did not again meet until the beginning of the second session of the congress on january 3 that would be an intra-session recess even though it would not be one that would require consent of the house. but in the usual case in which a recess is taken for an extended period of time, it would be the type of break that the framers contemplated would need the consent of the house. and the reason for that should be obvious. we have a system of a bicameral legislature.
the houses two are supposed to work together to accomplish the business of the people. if the house is working on something and the senate wants to go away, or visa-versa, they need the consent of each other because they may need each other to frame out ongoing legislative projects. and if the house in its own judgment thinks that the senate is sufficiently available to the house in our bicameral system so that it -- so that has been is full compliance with the adjournments clause, it is very difficult to see how in the agreement of both houses of congress that the senate is in fact effectively available, that is there with its full power of unanimous consent every third day. if the house thinks that that is adequate for the discharge of its constitutional functions and the constitutional functions of the senate, it's very difficult to see how the president gets to second-guess that. one final point that has to do with the solicitor general's insistence on the no-business language.
rules 5.1 of the senate -- may i finish? >> yes. >> makes very clear -- it's also in our appendix -- that any business may be conducted at any time, without notice, by unanimous consent. and so that effectively, what we have here is merely an announcement by the senate that between december 17 and january 23, only unanimous consent business would be agreed to. >> thank you, counsel. general verrilli, 6 minutes. >> thank you, mr. chief justice. let me begin with a couple of points on intra-session recesses. with respect to the question that justice alito raised, it would have been perfectly
familiar to the framers that a legislative body could take an intra-session recess. jefferson's parliamentary manual written while he was vice president and presiding over the senate specifically refers to recesses by adjournment that occur within a session and the session resumes when they are over. the adjournment clause itself contemplates the need for approval by the other branch for a period longer than three days during the session. i think it's difficult to imagine that if, as justice alito's hypothetical suggested that the senate had in the first years under president washington decided to take a two-month, intra-session break, that president washington wouldn't have been able to staff the offices of the fledgling republic using the recess appointment power. >> well, if we agree with you on the first question, then there either needs to either be a number or a functional test. and i don't know where the number would come from and i
don't know how the functional test would play out, so maybe you could say just a word about that. >> we think the number should be -- should be the number in the adjournments clause, 3 days or less. now, presidents have exercised restraint and there haven't been recess appointments in periods below 10 days, but we think that would be the line. now -- >> with respect to the presence of that in the adjournments clause but the absence of any number in the recess appointments clause, how do you explain that? >> well, i think that there isn't really a need for explanation. a recess is a suspension of business, and what the adjournment clause says is if you are gone for 3 days or less you are not really suspending your business, but if you are gone for more than 3 days you are. and i think that is quite consistent with the argument that my friends on the other side are making. now, with respect to the history on intra-session recess appointments, really if you look at the congressional directory which is a document that we cite in our brief, and you look at the column that says intra-session recesses, you will see page after page of blank
space until you get to the civil war era when intra-session recesses become more frequent. and intra-session recess appointments really just precisely parallel the increasing use by the senate of intra-session recesses. >> can you argue that the senate sort of acquiesced in that and everybody's come together, but what would expect a senator to do? >> well, if they -- >> you know, the president appoints somebody during a recess contrary to the respondent's view, what's the senator who objects to that supposed to do? >> well, a couple of things about that, mr. chief justice. the pay act, of course, was first enacted in this period, in the 1860's, when the first intra-session recess appointments occurred, in fact even in its original form never said -- and since, never said anything about trying to restrict intra-session appointments. if the congress felt that these were improper, they could have done what they did in the tenure of office act and passed a statute of making it a crime for somebody to take one of these
appointments. but they didn't do anything like >> would you object to that on the same grounds you are objecting here? >> we would. >> that is not something effective if you think it is unconstitutional. >> in terms of the agreement in terms of axisence. >> you say too bad the appointee is til in of office they didn't. >> some did. senator burr famously abjected. >> but saying that the intrasession recess are 30 days or longer that not that they are inappropriate as a matter of con city usingal power. i think that is about the length of the recess not about the existence of the power. if i could move to the question. >> i want to make sure i undersunday. the senator who objects should do what? >> say whatever the senator wants but we don't have a
historical record of objection. we have a historical record of activitiesacquiescence. >> he says it is not worth it. >> if the congress as a body thought they were inappropriate they could take legislative action to try to limit the president's authority and they never have. >> you stay would actually be total levin effective. >> we agree on the -- on the criminalizing point but in terms the pay act for example they never in their original consideration of the fact and subsequent never troyed to address in. if i could turn to that -- >> people object all the time to things that they can't do anything about. >> yes, your honor and that is an individual objecting and not the senate objecting. >> the report -- there were reports? >> sir. >> youyour six minutes couldn't be
up. >> take a few more minutes. [laughter] >> there were a couple of committee reports but i believe those were on the happen issue. let me turn to that if i could. your honor i pointed out the number of appointments as i said. don't take that chart comprehensively is. we think there are many more and 39 presidents have made the appointments. now, the purposes of the clause as we discussed earlier, i think are far better served by our reading of sides. jefferson gave a reasonable textual readinged a then your honor asked about the pay act. it says that the nomination if the vacancy arose within 30 days but if a nomination is pending. >> if 30 days. the reason i'm doing that seems hypothetically a real matter for the political branches to resolve among themselves. we have to decide this. i thought well, why not look and
see what congress objects to the least. and i got that 30 day thing from the pay act by analogy. i want to get you view on that. >> i would point out by analogy also there is another provision in the pay act, the same statute that says so long as a nomination is pending even if the vacancy arose more than 30 days the same expression of congress p. views of what is appropriate. >> that was that senate. that is not the senate that is sitting now. you are attributing the views of one senate to the senate over time. >> that is an expression of the law of the united states that the -- >> i'm really interested in how you think the 0 30 day idea if practical plays out in terms of your concerns? >> well, i think it -- the -- as i said, i think there is an equilibrium and the 30 days doesn't fully capture and low temperature me talk about it if i could briefly.
>> yes briefly. the vast majority of appointees are submitted. the vast majority of appointees are subsequently confirmed. just not the case this is an end run around the advice and consent role of the senate and there are powerful reasons, of course, why presidents to that. they don't want to have temporary appointments to deal with vacancies again and they don't wasn't to reiate interbranch frick objection. friction. if you to with respondents on the two underlying issues that the d.c. circuit ruled on you are writing the recess appointment power out of the constitution and that is against the liberty enhancing separations of powers that was described because ambitions would counter act ambition. you shouldn't disarm one side. thank you. >> thank you, general. the case is submitted.
>> the supreme court ruled in a case dealing with president obama's freedom to make recess appointments. what did the court decide? tell us about the details of the ruling? >> they said that president obama overstepped when he appointed three members to the national labor relations board in 2012 while congress said -- the senate said it was in a recess. basically the court and all nine justices believe that that was a violation of the constitutions of the appointment clause. >> now, leaders on capitol hill have responded to the decision. we have reaction from senate majority leader harry reid and minority leader mitch mcconnell. reid says the senate has been confirming qualified nominees at a steady pace and today's ruling will have no effect on our ability to continue to ensure that qualified nominees receive an up or down vote.
this have mitch mcconnell. a unanimous supreme court has rejected this brazen power grab. what is your take on both remarks? >> well, actually i think they both have a point. mr. mcconnell is right this was as rebuke to presidential authority. boils down to a dispute between the legislative branch and the executive branch and the legislative branch won in that the court found limits to the president's recess appointment powers. but leader reid is right that for the time being it may not have practicalally a big effect on nominees because as he notes the senate changed their rules in what was known as the nuclear option and that allows most nominees to move forward with -- basically a simple majority rather than a larger number of senators backing that nomination. so as long as the president's
party controls the senate, the presidents likely to have his way with nominees. >> reaction from the white house? >> not yet but the national linebackerrer relations board the agency at -- labor relations board did issue a response a few minutes ago saying that it would be reviewing the decision and any decisions that it would have to revisit. some suggest that there are hundreds or even thousands but more likely hundreds of decisions that were made by the court when it was unconstitutionally structured. so those would have to be revisited. >> so will this ruling then have any impact on past nominations including the national labor relations board members who were the subject of a supreme court case? or is this only going to affect future nominations? >> well, that remains to be seen but likely the latter. at least in the case with the
nlrb, those members have been reconfirmed in the traditional fashion by the senate. so, there is no issue there. interestingly, the conservatives on the court would have gone farther to limit presidential recess powers to only between sessions rather than during recesses within sessions of congress. and the majority led by justice breyer suggested that if the conservatives led by mr. scalia had their way, there would be countless numbers of nominations and appointments in the past that would be now thrown into question. >> you can read the work at the hill.com and tweet him. thanks for your time today. >> you bet. >> next, senator charles grassley and senate minority
leader mitch mcconnell. this is 15 minutes. >> i ask permission to speak for 10 or 11 minutes in morning business. >> without objection. >> i come to the floor today to praise the supreme court's decision to strike down president obama's illegal recess appointments. article 2, section 2 of the constitution provides for only two ways in which the president may appoint certain officers. first, it provides that the president nominates and by and with the advice and consent of the senate appoints various officers. second, it permits the president to make temporary appointments when a vacancy in one of those offices happens if the senate is
in recess. on january 4 2012, the president made four appointments. they were purportedly based on the recess appointments clause. he took this action even though they were not made in the words of the constitution during the recess of the senate. these appointments were blatantly unconstitutional. they were not made with the advice and consent of the senate and they were not made during the recess of the senate. in december and january of 2011 and 2012, the senate held sessions every three days. it did so precisely to prevent the president from making recess appointments. it followed the very same procedure as it had during the
term of president bush. and that was done at the insistences of majority leader reid. president bush then declined to make recess appointments during these periods thus respecting the desire of the senate and the constitution that we were in session. but president obama chose to -- chose to attempt to make recess appointments despite the existence of the senate being in session. as the supreme court said today, for the purposes of the recess appointments clause, the senate is in session when it says it is provided that under its own rules it retains the capacity to transact senate business. a quote from the decision. no president in history had ever attempted to make recess
appointments when the senate said it was in session. and i'm a little surprised since senator obama or president obama had sevenned in the senate that he would not know how -- serve. he would not know how this had been respected in the past by presidents. so president obama failed to act "consistent with the constitution's broad delegation of authority to the senate" to determine the rules of its proceedings "as the constitution states. these illegal appointments represent just one of the many important areas where president obama has disregarded the laws with his philosophy of the ends justifying the means. we should all be thankful, then, that the supreme court has reined in this kind of lawlessness on the part of this administration. and it should also bring some
confidence that at least from time to time maybe not as often as our constituents think so that the checks and balances of government do work. the supreme court was called upon to decide whether president obama could make recess appointments even when the senate was in pro forma session. fortunately for the sake of the constitution, and the protection of individual liberty, the supreme court said it did not. now this is a very significant decision. it as supreme court's biggest rebuke of any president because this was a unanimous decision. is biggest rebuke of any president since 1974 when it ordered president nixon to produce the watergate tapes. it included the unanimous decision included both justices that even this president has appointedappointed to the supreme
court. that shows the disregard in which the president held this body and the constitution when he made these appointments and remember as i just said i'm a little surprised because at one time he was a senator oback obama. barack obama. thanks to the supreme court, the u.s. or the use of recess appointments will now be made only in accordance with the views of the writers of the constitution our founding fathers. it is worth keeping in mind that the president, the justice department and the senate is the at the time of these appointments. the president said that his nominees were pending and he would not wait for the senate to take action if that meant that important business would be done. so the president stated in another way then that i have a
phone and if congress won't i will. but the supreme court has made clear that failure to confirm does not create presidential appointment power. the appointments were so play tantly un-- blatantly unconstitutional originally there was speculation that the justice department had not approved their legality. but in fact the department of office of legal counsel had provided a legal opinion that claimed to justify the appointments. in other words, justify the unconstitutional action of the president. now, the department's office of legal counsel's reasoning was prepostorrous and this unanimous decision backs that up. the -- that office tee fined the -- defined the same words recess that appear in the constitution in two different places differently and without
justification. it claimed that the senate was not available to do business so that it was in recess when the president signed legislation that the congress passed during those pro forma sessions. the department allowed the president rather than the congress to decide whether the senate was in session. as today's supreme court unanimous decision makes clear the office of legal counsel opinion was an embarrassment reflecting very poorly on its author. she had told us in the confirmation hearings that she would not let her loyalty to the president overcome her loyalty to the law. this office of legal counsel opinion proved otherwise. it said the president had the power he did not have and he it not have that power as expressed
today by that unanimous decision of the supreme court. those partisans in that office who defended that opinion and its author should be humbled and should take back their misplaced praise not that i expect them to do that. the office of legal counsel opinion garnered a trend for that office from one which gave the president objective advice about his authority to one which provided legal justification for whatever action he had already decided he wanted to take. perhaps now that the office has been so thoroughly humiliated it will hopefully conclude that the department and the president will be better served by returning to the former role of that office as a servant of the law and not a servant of the president. the other statements to keep in mind were from senators.
no senator of a the president's party criticized president obama for making these clearly unconstitutional appointments even though they felt we ought to protect the president from president bush doing that. rather than protect the constitutional powers of the senate and separation of powers they protected their party's president. those were not the senate's best moments. this underscores again the need to change the operation of the united states senate. appointment powers and the separation of powers are not simply constitutional concepts. they are the rule of how the american people are protected from abuse by government people. they exist not so much to
protect the branches of government but then to safeguard individual liberty. let me quote again from a federalist papers as i often do. this time 51. madison wrote that "separate and distinct ex-er size of different powers of governments is essential to the preservation of liberty." president obama's unconstitutional recess appointments are part of a pattern in which he thinks that if he cannot otherwise advance his agenda he can unilaterally thwart the law. that is a pet authoritarian approach to governing. whether it is with respect to drugsion immigration, recess appointments healthcare, and a number of other areas. president obama has concluded that he can take unilateral
action regardless of the law and, of course, as we see in the case of those appointments the justice department has aided and abetted him in that. praise then today to the supreme court for forcing the president to confront the errors of his ways and for enforcing the constitutional structure that protects our freedom. and maybe cause him to modify that statement he made earlier this year that when congress won't i will because i have a pen and a phone. i yield the floor. >> mr. president, i welcome the supreme court's decision in the case. it represents a clear clear rebuke to the president's prazen power grab. a power grab i was proud to lead
the effort against. today's decision was clear. and it was a unanimous unanimous rebuke of the president of the united states. like my republican colleagues i have said all along president obama's so called recess appointments to the nlrp in 2012 were a wholly unprecedented act of lawlessness. the president defied the senate's determination that it was meeting regularly and the supreme court unanimously unanimously agreed with us. today's ruling is a victory for the senate. for the american people. and for our constitution. the court reaffirmed the senate's clear and constitutional authority to prescribe its own rules including the right to determine for itself when it is in
session. and the supreme court unanimously rejected the president's completely unprecedented assertion that the unilateral appointment power a power that the framers deliberately withheld from his office. our counsel, miguel estrada did an outstanding job defending the senate and its uniquely important place in our constitutional system. by contrast, our democratic colleagues shirked their institutional duty to defend the senate. they failed yet again to stand up to the president. although they failed to defend the senate when it mattered most, today their successors and their constituents will benefit from today's ruling. the principle at stake in this case should extend well beyond narrow partisanship.
it should be about more than just one president or one political party. in crowing the administration -- in closing the administration tendency to abide only by the law it likes represents a disturbing and dangerous threat to the rule of law. that is true whether we are talking about recess appointments or obama care. so i hope the obama administration will take away the appropriate lessons because the court's decision today is a clear, clear rebuke of this behavior. >> friday, constitutional law attorneys reviewed the 2013-2014 supreme court term and discussed the major cases including campaign finance cell phone searches and presidential recess appointment powers. live coverage at 9:30 a.m. eastern on c-span 3.
>> what i have right here is a partially processed plant that i cut down into sections that are the right length for hanging and take off the big fan leaves and those are send to the kitchens to make edibles. a small amount of t.h.c.s so they get that from a good price. the little leaves here are the tight trim and that can be dried and made into joints or sent to the places that make extractions and made into hash and that sort of thing. and then right here we have the finished bud and this is sent over to cure and hang to dry and then cured in buckets for a couple can of weeks before they sell it in the dispensaries. >> washington journal looks at the recreational lieus and legal sale of marijuana in colorado. live 7:00 to 10:00 eastern on c-span. >> thursday the supreme court ruled unanimously that a 2007 massachusetts law creating a
35-foot buffer zone around abortion clinics violated the first amendment. in an article from the boston globe the lead petitioner said she was thrilled, the court recognized our first amendment rights and now i will have a chance to speak to people one on one. the article goes on to quote the executive trekor of pro poise "march madness" sayingprochoicesaying this decision ignores the real violence that occurs at abortion clinics referring to a 1994 case where two people were killed at clinics in brookline. next, the oral arguments from january. this is an hour. >> for the argument first this morning in case 121168. >> mr. chief justice and ney please the court. this court has held that the public side walks are a natural
and proper place for free sit dens to exchange information and ideas and for that reason the court has held that public side walks occupy a special position in first amenment analysis. if the massachusetts law at issue here makes it a crime to enter on to certain public side walks, even for the purpose of peaceful conversation, or leafletting, the law applies at abortion clinics throughout the state on every hour of every day that they are open regardless of the circumstances. massachusetts asks this court to uphold that statute under the time, place and manner test but the law fails each aspect of that test. i would like to begin with narrow tailoring. thestate says the law is necessary to protect its interest in preventing obstruction and con guesting but the law is not narrowly tailored to those interests for three reasons. first, the law applies regardless of whether there it any threat of obstruction or
congestion at all even when the sidewalks are open or empty. mrs. mccullum does her counseling on tuesdays and wednesdays beginning at 7:00 noting. she is sometimes alone when she does the counseling. nancy clark testified 90% of the time she is in the clinic at worcester she is all alone. this statute is not narrowly tailored. >> the problem that the state faced is it doesn't know and it has a history a considerable history of disturbances of blocking the entrance. and it doesn't know in advance who are the well behaved people and who are the people who won't
behave well. so and after the disturbance occurs it is too late so the state is trying to say we want to make sure that the entrance is not blocked and the only way we can do that is to have a rule that applies to everyone. we can't -- we can't screen people to know who will be well behaved and who will be disruptive. >> so i think the state is simply wrong about that fact for several reasons. there are many tools that the state either has in its current box or could enact that would deal with that concern. if i may back up. there are really two different interests that the state asserts when it makes that argument. first they say that there are actual deb rat dead actors. some people whom the state claim vs. deliberately violated the law and blocked the door and interfered with access. and then secondly the state says there is also some circumstances where there are enough people on the sidewalk that even lawful
consentual conversation might stentally block a door. i think those are actually two quite different interests but there are tools in the tool box to deal with both of them. section e of the statute makes it illegal to impede block obstruct, or even linder somebody's access to the clinics and that is not challenged here and never has been. >> i should probably ask this of the other side and i will, but do you happen to know when was the last time that massachusetts prosecuted somebody for obstructing entrance to an abortion clinic? >> so i believe the last cited in the record that i'm aware of is as of 1997 there was a decision in a previous injunction case against people adjudicated through broken rules. a 1997 case on that. to my knowledge they never brought a case for scam under the federal safe law which has been in exitances for 20 year.
>> so >> so there have been laws against obstruction during this entire period, right? >> there have been laws against obstruction the entire time. >> and you say that only once, in 1997, that was the last time a prosecution was brought. >> and that was an injunction against prior bad actors. that was not a face prosecution or a section e prosecution. >> you are not taking the position that 1997 was the last time an entrance was obstructed or that the police were called to open access to a clinic? are you taking that position that the last time it happened was 1997? >> i frankly don't -- i couldn't say that i know the last time it happened. >> but you do know that in the record there were more examples? >> i know that in the record there was testimony claiming that that happened. my argument is simply that the state has tools that are deliberately designed to deal with that. and so the united states -- >> mr. rienzi, the state says, of that particular tool, that
it's a hard thing to prosecute because you have to show intent, and there is a lot of obstruction and interference that goes on naturally just because there are a lot of people around. so that is an insufficient tool is what the state argues. >> yes. and so to the extent, what the state is saying -- to the extent the state is claiming that there are deliberate bad actors deliberately blocking the door i don't think that's a very persuasive argument. there are police on the scene, and if the police say, get out of the doorway, either the person moves in which case there is not a problem anymore, or they don't, in which case intent is pretty clear. amicus united states has prosecuted, i think more than 45 cases and gotten more than 70 convictions under that statute. >> and sometimes there are those bad actors, but probably more often it's just a function of there are just lots of people, and they, your clients and all of them want to be as close as possible to the site, and that that naturally leads to an interference with normal access. >> and so i agree that's the second part of the state's argument. i don't think this law is narrowly tailored to that concern, in two respects. one, the law applies -- you know, the evidence in the case is that the crowds that the state is concerned about happened essentially at one
clinic, one day, one time -- saturday mornings in boston -- and when they happen, there are video cameras rolling and police officers present. and there is no reason to believe the police can't simply say, move out of the doorway. and if someone is in front of the doorway, they certainly should do that. >> does the record show how many clinics in the state are covered by the law? >> i believe there are 11 or 12 clinics in the state. so long as they are freestanding abortion clinics they fall within statutory definitions. >> how far do you want to go in your concession? would you want to concede this point that imagine the state has two groups of people and one group feels what the other is doing is terribly wrong. and the second group feels, we absolutely want to do it. and everyone is in a fragile state of mind, and they want to, if possible, at least one group wants to sort of shout as loud as you could at the other, please don't do this. and the other says, please leave me alone. and we are not saying which group is which. the analogy is obvious, but i keep all the titles out.
does the state have the right, in your opinion, to say, it's tough to referee this, we see the potential for real harm on one side or the other, so we're going to have this kind of 35-foot boundary? you want to concede that and say, ok, but the evidence here didn't doesn't justify it, or do you want to fight that, too? does the state have the right, in your opinion, to say, it's tough to referee this, we see the potential for real harm on one side or the other, so we're going to have this kind of 35-foot boundary? say, okay, but the evidence here didn't doesn't justify it, or do you want to fight that, too? >> so, no, i do not mean to concede that. i don't think -- i think a solution that is done with painted lines on the sidewalk that says -- >> but now you are into the details. i want to know about the principle. i mean, i can imagine the principle applying special care and need must be taken outside of hospitals for veterans, even though there are some who are very much opposed to the war because these people will be coming out, they'll be in wheelchairs, it will be terrible. and others thinking -- you know, we can think of many, many situations, irrespective subject matter, where there is a need for such refereeing. and i just want to know if the -- if the concept is okay with
you or if not. >> generally -- >> with the details. >> generally speaking, no. i don't think the concept that >> so protestors like the one we had in the schneider case at a funeral of a veteran can go right up to the public sidewalk outside the church and put up the signs that they did and give out the leaflets that they did talking about that veteran in the ways that they did? that's ok by you. >> so -- so, a couple points about that. one -- >> there was no evidence there that they were -- that they were disruptive. they were just expressing their first amendment rights. >> so i think that that -- >> but there is the potential for disruption because of the strong sentiments around that. >> agreed. i think a statute that worked the way the one -- this one does here, that would make it illegal to even engage in peaceful conversation on sidewalks near a church or near a funeral or near just about anything else, i think clearly is not permitted
by the first amendment. >> in schneider, they were held not so far back that their shouts and protests couldn't be heard. isn't that the case? they could still be heard >> i think it made >> -- out of >> -- perhaps were part of the funeral procession that passed by. i don't think they -- >> do you see now why i am trying to narrow it? because in my case, in schneider, i thought it was pretty important that the demonstrators were behind a hill somewhere and the police restricted where they could go. many states have enacted similar laws, and i thought that's important, because maybe it would have come out differently. i mean, you could argue about it, and i could. so i'm trying to narrow it. i'm trying to see to what extent do i have to look at this particular set of facts, in which case we are into the hearings, et cetera, and to what extent is there a matter of very broad principle here, and any help you can give me on that would be appreciated. >> so the matter of very broad principle is that a law that
makes it illegal to even engage in consensual conversation quiet conversation, on a public sidewalk, an act that makes that a criminal act for which mrs. mccullen can go to prison, i think, is not permissible under the first amendment. if you compare it to, for example, the federal military funeral protest law, that law is specifically drawn to acts that disrupt the peace and good order of the funeral, and i think that is different. >> but are you saying that you could not do an act that instead just says, look, it's a little bit too hard to figure out what and what does not disrupt peace and order, so we're just going to say 25 feet around a funeral, or 25 feet around any facility, that that's never permissible? >> so, generally speaking, i think any law like that runs into a big first amendment problem of even eliminating peaceful, consensual conversation that doesn't disrupt anything. and this court's past first
amendment decisions have said that precision of regulation is required. one difference, if it's a rule around any facility or a rule around all funerals, for example, is that -- that there isn't nearly as much distortion of the marketplace of ideas as happens when you do what massachusetts did here, which is pick -- >> well, for example, i was intrigued by one of the examples that you gave in your own brief, which you said slaughterhouses. so, let's say, that there are animal rights activists, and this is easy to imagine, who try to interfere with access in and out of slaughterhouses. and a state passes a regulation that says there's a ton of interference, it's preventing the operation of these facilities, employees can't get in, suppliers can't get in slaughterhouses are leaving the state because of this problem, and so we're just going to set up a zone and let's call it 30 feet, because it's very hard to enforce anything else. i guess my reaction to that hypothetical -- you -- you must have used it for me to say, oh, that's terrible. but my reaction, my intuition
was kind of what's wrong with that? just have everybody take a step back. so what is wrong with that? >> so what's wrong with that is a couple of things. one, again, this court's decisions require precision of regulation. so an injunction, for example, against groups and individuals like madsen and schenck, for example, an injunction against groups and individuals who have interfered with access, keeping them back i think that's perfectly permissible. we take no issue with that type of solution. it's the generally applicable statute, right, that's tied to just one particular often-protested event that gives the state enormous power to interfere with the marketplace of ideas. >> in one of the examples that is given in one of the amicus briefs in this case, and they -- they provide a lot of
background, is a state law that creates a buffer zone around every fraternal lodge. what would you say about that? >> i think it is difficult to imagine the government interest to -- well, first, i guess, i don't know the particulars of that law and what it -- what it restricts. if it restricts peaceful conversation on public sidewalks anyplace there's a fraternal lodge, i would say that -- that should not be permissible under the first amendment. i think, generally speaking, the idea of the government picking one particular item and saying well, around this, suddenly the character of the public forum changes from a place where people can have peaceful consensual conversations to a place where we will imprison them for doing that, i think that's a dramatic restriction of first amendment rights. i think if there is a particular group or individual who keeps interfering with the fraternal order, of course, you can get an injunction against that type of behavior, but i don't think the state can say even peaceful discussion and leafletting --
>> but let's go back to the slaughterhouse case. i mean, there might be people who say it's really important to us to actually be able to face-to-face talk with the employees and tell them why they should get different jobs or why they should change their practices in various kinds of ways. and, you know, there are some people who think signs and chants are great, but there are people who really want to make one-to-one contact with the truck drivers, with the employees, whoever. but -- but you say, you know, we have to let whatever interference goes on, even if there's a record of -- of real obstruction, of real interference with the operation of the facility, in order to allow that to happen. and i guess i think that that's -- that's pretty hard. >> to be clear, your honor, i'm not saying the government has to let it go on. i'm saying the government has tools that are better drawn to it than eliminating even the peaceful, consensual conversation. >> but suppose -- and this is still justice kagan's question -- suppose it were a given assume that those laws just did
not work. could there then be consideration of a buffer zone? now, this is a hypothetical that i'm sure that you wouldn't accept in the context of your case, but suppose. >> suppose it were a given that there is no way to keep the abortion clinic open >> the laws simply do not reference to obstruction and blocking entrance, simply do not work. >> if the laws simply do not work i think perhaps the government could come in and make a case that it has a compelling interest and that this is the least restrictive means of doing it. >> ok. so that -- now, at this point -- that was a better way of getting what i was trying to get at. just assume that there is let's look at the narrow part of the case, and let's assume that the colorado case is right. and this particular restriction is more a restrictive than colorado in two important respects, which you've gone into. now, the reason that they did that is they had hearings in massachusetts, and they discovered that the colorado law didn't really work very well. and so, what are we supposed to do? are we supposed to now go look at -- as long as those hearings
are -- are legitimate hearings and they have good explanation on something like whether the zone is 8 feet and consensual or whether it's 35 feet and different amounts of sidewalk, depending on the nearness of the facility, when doesn't it become just up to them? we can't -- we're not legislators. we don't know the situation in massachusetts. we can insist upon a reasonable record. but how can we do more than that on this detail? >> so -- so, on this detail, what -- what i think the court should look for is, for example, had they had a -- the state said they did not even convict a single person of one unconsensual -- >> but you understand that. we all understand that. it's one thing to try to prove an intent on such matters, particularly when people are, in good faith, they're trying to explain it, and it's another thing to actually stop the congestion and to protect the interests of the woman who wants to have the abortion, may be in a fragile state of mind, and this kind of thing could interfere with her health, et cetera.
so there are two interests, one on each side. we know 8 feet with the bubble is ok. we're not sure about 35 feet, and they have an evidentiary record. >> so, a few things. one, the reasons this court gave in hill for allowing the 8-foot no-approach zone was precisely that it only was about protecting unwilling listeners and it did not stop discus with willing listeners. there are real people -- >> counsel, do you accept that the record here shows that it did not work well in the sense that justice breyer >> no, not at all. >> -- seems to use it? >> i understood i was being asked to assume that. >> as i recall the record, all -- all it says is that the police found it difficult to apply a bubble, that, you know they have to measure 8 feet or whatever it is. they didn't say that massive obstruction and protests are occurring, preventing people from -- that wasn't the finding, was it? >> no. i -- i agree, it was not. the claim was
>> that's why i just asked you that question. it just happens that the police testify with some evidence and examples that the 8-foot bubble doesn't work. and it also -- they have some evidence and reasons for thinking that if you want to have a conversation, you have to convince the woman to walk 10 feet. i mean, the difference is about half -- you know, if you were near me, price is near colorado. if we're over to where the first row is, we'd have massachusetts and -- and they have some evidence that we can't enforce this colorado thing very well, it doesn't help. now, go ahead. i want your answer. >> i -- i agree, but if >> i'm not trying to put words >> -- if you sent me 35 feet further back and asked me to make my argument from there >> i'd hear you. >> you might hear me, but i would suggest you'd -- you'd receive it quite differently. if i were sent back there, but the clinic -- or the state were permitted to stand in front of you like a normal lawyer and make their argument in the normal way, i would suggest that would be a significant difference.
and what we have here is -- >> i'm not denying the difference. >> yeah. >> i am asking you, we've now heard different characterizations of the record. i didn't mean to characterize it. i want you to explain what it is in the record, from your point of view or lack thereof, that means that the constitution intervenes to prevent massachusetts from doing it. >> so the constitutional narrow tailoring test under the time, place, and manner test requires that the law not restrict substantially more speech than necessary to serve the government's interest. >> how much is -- how much is restricted? how -- how long does it take from when you enter the buffer zone until you reach the clinic entrance? >> if -- if you're walking nonstop, i assume 7 to 10 seconds or something like that. >> so the conversation can go on before those 7 to 10 seconds. >> yeah. >> there's not much you're going to be able to do to have a conversation that will persuade people in 7 to 10 seconds. >> i respectfully disagree on that last point, your honor. the evidence in this record is that the -- the inability to speak with people close to the clinic has a dramatic effect on
the petitioners' ability to reach their audience. so if someone happens to be walking from the same side of the zone that you're standing on, you may have a shot. now, the clinic still has the space in front of the clinic to talk to people, which you don't, but you may have a shot if you're on the right spot. >> and if you know they're going to the clinic. >> and if you can identify the audience early enough. but, for example, places like worcester and springfield, where essentially the only chance to reach the audience is by standing on the public sidewalk and waving a leaflet as they drive through the driveway entrance. if you have to stand 35 feet back and do that, the evidence here shows there's essentially zero chance to reach that audience. >> but isn't that more a function that they just have a private parking lot? so even if this law didn't exist, you actually couldn't reach most of these people because they drive into the private parking lot and you can't talk to them anyway. >> no, your honor. i don't think that's a fair characterization of it. so yes, there's a private parking lot, but there's a public sidewalk on which, before this law, you had the right to engage in speech. the fact that this law pushes you 35 feet back is what makes it impossible to make the offer. many people would just drive on by, they don't want the
information, and that's fine. that's their right. but many people do want the information and have acted on the information. and this law makes it much harder, almost impossible in places like worcester and springfield, to offer it. >> is there a buffer zone that you would concede is permissible? in other words, if it were 12 feet, would that be all right? >> so, as the size of the zone decreases, i think the -- the imposition on the speech rights is -- you know, gets less and less and better and better. and so the adequacy of the alternatives, for example, that may improve as you go. it would still be a problem, i think, to have zones on the sidewalk where, even when no one's there, it's a criminal act to have a conversation. >> well, but that goes back to justice ginsburg's question. i mean, how is a law supposed to deal with -- with that, sort of the fluctuating conditions that may be at a particular clinic site? >> that's -- that's precisely the point. that's why this is not something that should be addressed with a statute like this. this is something that should be addressed with either a statute drawn to something like large crowds or a dispersal statute. the brief -- amicus brief for new york state in support of
massachusetts here talks about how concord, new hampshire and los angeles deal with this problem. they give the police the power to disperse crowds when they become obstructive or violent, the same way this court approved in boos v. barry. >> it is the case, isn't it that not only abortion counselors are -- are excluded from this area, everybody is right? anybody who wants to talk to anybody or who just wants to be there -- can't -- i mean, this is a -- a dead speech zone, right? >> in many respects it is. in many respects it is no different than the speech-free zone in the jews for jesus case. it's a place where the government claims it can essentially turn off the first amendment. but the government says -- >> it's more than a speech-free zone. it's also a conduct-free zone right? you can't sell hats there, you can't, you know, beg there. i mean, you just can't go there.
>> i agree the government has eliminated more than speech on that sidewalk, but they've eliminated speech on that sidewalk as surely as in the jews for jesus case. >> well, they haven't entirely eliminated speech because employees are permitted to speak within the scope of their employment, isn't that right? >> thank you, justice alito. yes. so they haven't eliminated speech for all people. >> well, that's a -- a contested point because the attorney general reads "scope of employment" to mean getting to my job and leaving my job, and does not include speech activity. >> so on the face of the statute, i don't that -- that that interpretation doesn't do very much. >> this is the -- the chief legal officer of the state says this is a term that needs to be interpreted. the term is "scope of employment." scope of employment within this statute means getting to work and leaving work, and it doesn't mean political speech. >> so the attorney general says it's more than just getting to work and leaving work. it says it's just doing their jobs. first, i don't believe -- i
don't believe that they have the authority to do that, in other words, i don't think they could go arrest somebody who happened to speak about abortion when they work for an abortion clinic. they have an absolute statutory defense. but even if they could limit it to just doing their job, you end up with the problem that the ninth circuit sought in the hoyt case, which is if the clinic is allowed to use that sidewalk even just to say, "good morning, may i help you into the clinic," and the government says that's a valid use of our public sidewalks, but the state says mrs. mccullen will go to prison if she goes on that sidewalk and says, "good morning, may i offer you an alternative? as the ninth circuit panel said, that's indubitably content-based. the government doesn't get to decide that the public sidewalk -- which it leaves open for people just walking by, right? if i'm going down that sidewalk to get a cup of coffee, it's fine. >> well, am i correct that the attorney general's regulation with respect to employees of the clinic in a way made this even more content-based because there was a prohibition on discussing the -- the abortion procedure? >> i -- i agree. that's one of the reasons that
the interpretation is flagrantly unconstitutional. the government can't simply say to people who work for planned parenthood, we won't arrest you when you talk on the sidewalk unless you talk about abortion right? if you talk about abortion, then we'll arrest you. and that mirrors -- that mirrors the state's interpretation of its -- of the exemption for people walking through the zone, where it says you can walk through, and this is j.a. 93-94, "provided that the individual does not do anything else within the buffer zone, such as expressing their views about abortion." so the government's saying you can walk through, but you can't talk about abortion. >> but it's "such as," it's "such as." it says you can't talk about anything. >> well, i -- i agree. >> well, it's not content it's not based on speech about abortion. it's that you can't speak about anything. >> well, the -- the interpretation as to the employees that the attorney general has proffered for 6 years is about speech about abortion. so it's not they can't talk about abortion. >> excuse me. if -- if you're going through the zone just to get somewhere not to get to the clinic, and you're walking with a companion, can't you speak to your companion as you -- it doesn't ban speech by everybody who's walking through. >> the attorney general has
taken multiple positions on that. in the lower court, their position was you can't talk about abortion or partisan issues. they told the first circuit that you can't even wear -- that you can be arrested if you wore a cleveland indians shirt while you were just passing through. at this court, they say that people passing through have speech rights. either one is bad. either way the government doesn't have the ability to say who gets to speak and who doesn't get to speak on an open public sidewalk. if i may reserve my time? >> thank you, counsel. ms. miller. >> mr. chief justice, and may it please the court: petitioners can and do protest abortion in massachusetts and they can do it in the public spaces right outside abortion facilities. >> this is not a protest case. these people don't want to protest abortion. they want to talk to the women who are about to get abortions and try to talk them out of it. i -- i think it -- it distorts it to say that what they want to do is protest abortion. if it was a protest, keeping them back 35 feet might not be so bad.
they can scream and yell and hold up signs from 35 feet. but what they can't do is try to talk the woman out of the abortion. it's a counseling case, not a -- not a protest case. >> it -- your honor, i would say it's a congestion case. certainly, ms. mccullen and others can have those conversations right in front of the abortion facility. it's just that those conversations are moved back a few feet. and in point of fact, ms. mccullen -- >> well, it's more than a few feet. you know, 35 feet is a ways. it's from this bench to the end of the court. and if you imagine the chief justice as sort of where the door would be, it's most of the width of this courtroom as well. it's it's pretty much this courtroom, kind of. that's a lot of space. >> just as a factual matter, i did want to point out that in boston, for example, the door is recessed. it's a private entrance with a recessed door and the 35 feet is measured from the door. so it's actually only about 23 feet. >> i thought it was two car lengths.
>> i'm sorry? >> two car lengths. >> i'm sorry. i didn't hear you. >> two car lengths. >> two car lengths. >> that's, i think, a little less than this courtroom. >> we measured this courtroom. >> i'd just like you to go back to justice scalia's question for one second. i didn't hear the -- as he was saying that this case is not a protest case, it's simply about calm conversations. and that is what i want to know if the evidence showed that. >> well, certainly, there's a picture of a calm conversation >> no, the evidence upon which massachusetts based its decision to go to 35 feet instead of 8 feet. there were hearings. did the evidence show that what was involved was calm conversations between one person trying to counsel another or did the evidence show something else? >> certainly, the evidence showed something else. >> what? >> experience showed that there had to be a certain amount of space around the facilities. what we had, for example, were pro choice advocates swearing and screaming at pro life advocates within the buffer zone. that's at joint appendix 26 through 28.
you had the pink group, which is a pro choice organization, pushing and shoving and jockeying for position. >> well, surely you could have a law against screaming and shouting within 35 feet or protesting within 35 feet. isn't that more narrowly tailored? i mean, what this case involves, what these people want to do is to speak quietly and in a friendly manner, not in a hostile manner, because that would that would frustrate their purpose, with the people going into the clinic. >> but, again, experience showed that even individuals who wanted to engage in close, quiet, peaceful conversation were creating congestion around -- >> rather -- i note there's some people who are peaceful, in which case i would accept justice scalia's suggestion this is a counseling case. but you've cited some other evidence that suggests there were other people who were screaming, pushing and shouting, which sounds like, in his characterization, a protest case. and the reason that massachusetts found it difficult
to write a statute that distinguishes one from the other is? why do people write statutes that sometimes do not make these fine distinctions? why did they in this instance? >> they didn't make a fine distinction, your honor, because it didn't matter whether people were being peaceful or whether they were -- >> could you have written such a statute that would have worked? >> it would have been very difficult to write such a statute, your honor. >> how did you pick 35 feet? why 35? >> well, again, experience showed that some amount of space around the buffer zones around the facilities needed to be open. so then it was simply a question of looking at past experience, at the prior injunctions, for example, your honor. for example, in planned parenthood v. bell, which is cited at page 2 of our brief there was actually a 50-foot buffer zone imposed by a district court judge in massachusetts. we knew from, of course, madsen and schenk, that 36-foot buffer zones were acceptable in -- when you were being responsive to that kind of problem, and we knew that a 15-foot buffer zone would be acceptable if
responding to a similar kind of problem. so at some point or another, the -- the legislature was aware that some amount of space needed to be created, and it chose 35 feet as a reasonable response, a reasonable amount of space around the facility to allow -- >> to go to -- go back for a second. i see that. is there anything in the record -- the obvious reason for a legislator, i think -- i did work in the legislature for a while as a staff member that you don't write these fine statutes is they won't work. they have too fine a distinction. the activity is commingled. the activity -- all right. now, i knew you were just going to nod my -- your head as soon as i said that. so i was trying to get you to say it in spontaneously if it's true. is there anything in this record that suggests that this is one of those cases where it's just too tough to say whether they're counseling somebody or whether they're screaming at somebody, whether
they're pushing somebody or whether they're standing near them peacefully? is there any evidence in the record i could turn to that would suggest that? >> you should say yes. >> and i will. >> she can't say yes if it isn't there, because i'm going to ask her where because i want to read it. >> i will of course, your honor. the best description of that is, of course, commissioner evans's description of the space functioning like a goalie's crease. >> well, let -- let me ask this question: assume it to be true that an elderly lady who was quite successful and had meaningful communication with over 100 women going into the clinic, before this law, was unable to talk to even one after this law. assume that's true. does that have any bearing on our analysis? and does that have any bearing on justice breyer's question about whether or not a law can be written to protect that kind of activity but still to prevent obstruction and blocking?
>> i -- i think, your honor, that no one is guaranteed any specific form of communication. so, there is no guarantee, as a doctrinal matter, to close quiet conversations. the question is, are there adequate alternatives? and in this particular instance in this record, there are adequate alternatives. take, for example, the situation >> you say there's no -- no guarantee of talking quietly? do you want me to write an opinion and say there's no free speech right to quietly converse on an issue of public importance? >> generally on the public sidewalk. but, of course, that right is tempered by the -- the state's interest in making sure that the public sidewalks function as they should and that there is peace and good order. but i would give you an example, your honor. i'd -- i'd point you >> i still don't know where you're going to -- this -- this goes to justice breyer's question. you -- you cannot write an ordinance that says obstruction,
intimidation, blocking is prohibited, and still allow the kind of conversation that i described earlier and that i want you to assume to be true for the -- for the purposes of this question. >> your honor, we -- we couldn't here, obviously, because that wasn't the problem. the problem with making that kind of a fine distinction is that it doesn't address what the state's >> but in speech cases, when you address one problem, you have a duty to protect speech that's -- that's -- that's lawful. >> you do. as long as your protection is narrowly tailored to your interest, you -- >> but i -- i think what you have to say to this court is that it's impossible to write a statute of the kind that we are discussing now, and this is justice breyer's question. >> it would be enormously difficult to write a statute that addressed the problem and
the significant interest here where you are making that kind of a find -- >> may i ask you a question about a distinction that is in this statute? now, let me give you this -- this example. a woman is approaching the door of a clinic, and she enters the zone. two other women approach her. one is an employee of the facility, the other is not. the first who is an employee of the facility says, good morning. this is a safe facility. the other one who's not an employee says, good morning, this is not a safe facility. now, under this statute, the first one has not committed a crime, the second one has committed a crime. and the only difference between the two is that they've expressed a different viewpoint. one says it's safe, one says it's not safe. now, how can a statute like that be considered viewpoint-neutral? >> your honor, i think what the statute distinguishes is based on what those two different people are doing. the -- as you say, the employee
could say, if she was performing her job, which would be escorting that individual into the facility and if she wasn't unnecessarily cluttering up the -- the buffer zone, which was the reason that the statute was -- was enacted in the first place, then that person could say that. you judge it on what she's doing, not what she's saying. >> well, that's what she what she's doing is what she's saying. she approaches and she says this is a safe facility. the other one says it's not a safe facility. they have a bad safety record. and they're -- they're the only people in the zone. >> right. >> if it's as big as this courtroom, they're the only three people in that zone. >> right. >> the difference is a viewpoint difference. >> the -- what the legislature has done is that it has created a circle around these entrances and has only permitted particular conduct within that buffer zone to allow the traffic to keep moving on the sidewalk and to allow people to get in and out. so unless you have a permissible purpose for your conduct to be in the buffer zone, then you cannot be in the buffer zone and that is what
the statute is addressing. >> i don't understand it. it's a permissible purpose to say this is a safe facility, but not a permissible purpose to say this is an unsafe facility? >> the statute is not focused on that person's speech. the statute is focused on -- on what they're doing in the buffer zone. >> but the consequence is just what is described by justice scalia, that is, the consequence of the statute. are you saying that the consequences of what you write are irrelevant to this argument? >> certainly, i wouldn't say that, your honor. however, with respect to >> it seems to me that you should answer justice scalia's question, then. >> with respect to viewpoint discrimination, your honors, the statute has a perfectly legitimate sweep. it allows people to go in and out of the building. it allows pedestrians to go -- move back and forth across the sidewalk, and it allows for even employees, the snow shovelers mentioned in the walter dell brief. >> well, you could have created a completely silent zone. now, i don't know whether that would be permissible or not, but it would be a different
question. you could have -- you could say nobody can speak here. people can shovel snow. if they work for the -- for the clinic, they can sweep the sidewalk, they can do maintenance, they can go in and they -- and out, but they can't utter a word. well, that would be a different statute. but that's not this statute. this statute says that there is an exemption for employees of the facility if they are operating within the scope of their employment. and surely coming out and saying this is a safe facility is within the scope of their employment. >> right. >> so how do you justify that? forget about the conduct now. the speech that's allowed. one can speak and say it's safe. the other cannot speak and say it is not safe. >> what i would argue, your honor, is that speech in that particular circumstance of the employee actually doing her job and not unnecessarily cluttering the buffer zone, what -- then that speech is simply incidental to the permissible conduct. and it doesn't make the statute on its face -- it doesn't make it viewpoint-discriminatory.
because as i said -- >> you think it's incidental? what if there's a real question about whether this is a safe facility? that's incidental speech? >> it's incidental to her performing her job. and, your honor, it -- if there were a circumstance where that kind of speech were habitual or widespread or touched on advocacy in any way shape or form, then obviously, petitioners would have an opportunity to challenge the statute as applied. but, of course, they haven't even begun to make the case that there's viewpoint discrimination actually happening in the buffer zone. >> it's very hard for me to credit the statement or the implication that for an employee to say, "we're glad you're here. you're going to be well taken care of. this is a safe facility. it's important for you to be here," it's very hard for me to credit your statement that that's incidental to their function. >> it's incidental to the permissible purpose for which they are allowed in the buffer zone.
and i should point out actually, that pplm -- and again, this is in the walter dillinger brief at page 2a -- they actually train their escorts not to engage in that kind of speech. so that's first of all. and second of all, escorts really only exist and only operate in boston on saturday mornings for a couple of hours. they don't work at all in worcester or springfield. >> well, that raises another question, ms. miller, because i assume that that's true because the crowds and the obstruction really are with respect to one facility at certain periods of time. so mr. rienzi says, look, if it's at one facility, not all ten of them or whatever it is, and it's only for certain periods of time, not all day every day, you know, why not narrow it that way? >> right. >> so why not? >> because the experience has shown that you do have problems at worcester and springfield and those problems do center around the driveways.
85 to 90 percent of patients who approach those facilities do so by car. and the only public sidewalk -- there's a small slice of public sidewalk between the road and the private driveway, and that's the only opportunity that you'd -- that individuals would have in order to protest. and what's happened in the past in worcester and springfield is that you would have pacing across these driveways. that's at joint appendix 41. you'd have individuals stopping and standing and refusing to move in worcester. you'd have literature thrown into cars. you'd have hands and heads thrust into open windows. and there was at least one accident in worcester. that's at j.a. 19. so there definitely was conduct that was a problem, and it wasn't even that there are a couple of lone protestors in worcester or springfield. there are 13 events in worcester and springfield. there are regular protestors there every week, first of all. and second of all, the crowds get much larger at the
semi-annual -- >> i -- i object to you calling these people protestors, which you've been doing here during the whole presentation. that is not how they present themselves. they do not say they want to make protests. they say they want to talk quietly to the women who are going into these facilities. now how does that make them protestors? >> your honor, the problem, of course, that the statute was looking to address was not with protestors, per se. it was with people who had a desire to be as close to the facility doors and driveways as possible to communicate their message. but the result of that was congestion around these doors and driveways. so it wasn't a concern about the protest, it was a concern about people actually being able to use -- >> and i would think, ms. miller, that if you tried to do a statute that distinguished between protestors and counselors, that would be content-based much more than this statute is. >> i would agree. >> i mean, but -- you know which is not to say that this
statute doesn't have its problems, in my view. i mean, so i guess i'm a little bit hung up on why you need so much space. >> again, the experience. we've had quite a long experience in massachusetts, a long history of crowds around these doors or of even violence at the clinics. and we've had law enforcement and others who have viewed that crowd on a regular basis and have described it, the activity around the doors and driveways as being so frenetic. you have so many people there, the bad actors and the good actors. you have so many people congested in the same space from all points of view that it effectively blocks the door. >> well, before you sit down can i ask you this question that's suggested by the afl-cio briefs. suppose the state legislature has hearings, and they say there's a long history of violence and obstruction at sites where there is a strike and replacement workers have been called in. could the -- could a state pass
a statute that says there is a 35-foot zone like this around every location in the state whenever there is a strike and there are replacement workers? could they do that? >> right. well, of course labor actions are protected by federal law, so any state law couldn't directly conflict with the >> all right. could federal law do that? >> well, this court has repeatedly upheld restrictions on labor activity, if given the right record. so there is -- so the answer is yes, the first amendment would permit regulation on the record >> in every case, in every case there could just be a flat rule. doesn't matter whether there is any history at that place, any indication there's going to be violence. maybe there will, maybe there won't. across the board, a zone around every place where there's a strike. >> right. well, certainly it would be an easier case to defend if there was a history, as we have here. and you'd have to prove that the solution -- >> you don't think there's a history -- you don't think there's a history of violence at places where there are strikes
and replacement workers? >> well, i don't think there has been the kind of history and sustained violence that we've had -- this almost unique record in massachusetts with respect to facilities. but your honor, i would say >> that's not my understanding of the labor history. >> is there any abortion clinic that has not had -- is there any abortion clinic that has not had a problem in massachusetts? >> in -- there was, when the legislature was considering the statute, there was a survey submitted by naral that reviewed the experience of the ten facilities that were then in existence in massachusetts. and six of them said that they had significant problems outside of their facilities. eight of them said, at the very least, they had regular protestors. there were two who did not report that there was a significant problem. >> this is testimony by the by the clinics themselves, right? >> correct. thank you, your honors. >> thank you, counsel.
mr. gershengorn. >> mr. chief justice, and may it please the court: the massachusetts statute here is simply a place regulation that does not ban speech, but instead effectively moves it from one part of a public forum to another, in this case away from the small areas -- >> which of our -- which of our precedents do you think governs this case? >> so, your honor, i think that there are a number of precedents that are helpful. madsen, of course, upheld the 36-foot buffer zone that had a no-speech zone very much like this. >> that was an injunction. >> it was an injunction, your honor, but it was upheld under an even stricter standard that -- that is applies here. but even aside from that, i think a number of the pillars of petitioners' arguments here are directly contradicted by this court's precedents. so, for example, the idea that -- that unrestricted -- that you have the right to choose the best mechanism of communication is
contradicted by hefernon and by frisby. in hefernon, there was -- the petitioner said, "i need to be able to talk quietly to people to ask for money, and that's the only way i can get it." and this court said you have ample communication channels -- alternative channels over in that booth. in frisby, what the protestor wanted to do was target a house, and what this court said in frisby was you have alternative channels of communication. you can go door to door. you can mail things. you can make calls. so i think that that pillar of the -- of the argument -- >> what's the alternative here? yelling? is that the alternative? no, your honor. the alternative in this case is the entire length of the sidewalk, quiet counseling, leafletting, and conversation is permitted. it is the last four to five seconds before the petition -- before the counselors enter the clinic that -- >> they don't know who's going into the clinic. until you get to the area close to the clinic, you don't know
whether passersby are going there or not. >> your honor, the testimony is actually to the contrary, that they get -- that ms. mccullen and others get quite good at identifying who is going and is not going into the clinic. and actually so what we're talking about is the last four to five seconds before they go in. >> is your concern that, absent this statute, there will be physical obstruction to the entrance? is that a major concern? >> so, your honor, let me address that. the answer is -- the answer is yes, but that's not all. what the legislature had before it, and justice breyer -- >> let me ask, if that's your concern, how many federal prosecutions were brought in massachusetts for physical obstruction under the federal statute? >> your honor, i'm not aware of the number. there are 45 face prosecutions nationwide. but face is a very different statute. the criminal prosecutions in face are for -- are for murder arson, and for chaining yourselves to doorways. they are not for the kind of quiet counseling and -- and picketing that's at issue here.
>> but the federal interest that you're the defending is you don't want this physical obstruction statute to be misinterpreted. >> that's right. >> but what's wrong with the physical obstruction statute as an answer to many of the problems that massachusetts is facing? >> your honor, i don't think it's at all an answer to the problems massachusetts is facing because, as justice scalia has repeatedly pointed out, these are not the type of defendants who are at issue in the face act. what face act is talking about is murder, arson, and chaining to doorways. what this statute is getting at is something quite different. it is congestion in front of doorways. it is people -- individuals handing out >> that's obstruction under the federal statute. >> it is not, your honor because those are specific intent crimes in both massachusetts and in the federal statute. >> justice holmes said even a dog knows the difference in being stumbled over and being kicked. you're saying federal prosecutions can't tell when people are deliberately obstructing? this is beyond -- this
is beyond the realm of the law? >> i'm saying what's at issue here, your honor, is not that kind of -- of deliberative obstruction. what the testimony before the legislature was, was that there was a congregation of people and the massing of people. that indeed, there were pro choice protestors in the zone who have -- certainly are not intending to obstruct. and it was -- so what they were dealing with was quiet counseling leading to counter-counseling leading to congestion in front of the doorways. there also was testimony that there were people handing literature to moving cars, accidents and near accidents which are not intentional obstruction in the least. the kinds of statutes that this court that -- that are at issue in the specific intent crime in massachusetts and the face act do not get at the kind of peaceful, quiet, yet congesting and disrupting conduct that is at issue here. and, justice breyer, i would urge you to look at the evans testimony at joint appendix 67 to 71. the hefernon testimony at 79 to 80. the coakley testimony of ja-51 and the capone testimony at ja-19.
there are specific arguments as to why these did not work. the argument petitioners make here, your honors, is very, very broad. the lower courts have upheld buffer zones around political conventions, around circuses around funerals. the idea that you could defeat those buffer zones by simply saying, i would like to have a quiet conversation with the delegates as they go into the political convention, would wipe out a number of court of appeals decisions and the kind of buffer zones that this court, i submit, and that the lower courts have found are -- are needed. >> well, how far do you think -- what do you think a state legislature or congress needs to find in order to establish a zone around some category of facility at which there -- they have some evidence that there have been some disruptions and some obstruction? >> take the example of -- i think it's -- it's a real -- real ordinance someplace you
can't have, there's a buffer zone around fraternal lodges. >> so, your honor, i'm not aware of the history of fraternal lodges, but what's at issue here is really >> what would they have to find? or slaughterhouses. or labor -- or sites where there are strikes. >> so i think -- i think, for example, in the slaughterhouse or what they found in around circuses and conventions is the idea that there is massing of people that prevents the orderly ingress and egress to and from the facilities. what the state was dealing with here was not an isolated incident, but the state had 14 15 years of history of the massing. they had tried other things. they had tried the statutes that justice scalia identified. they had tried a narrower buffer zone, and the testimony was it wasn't working, and that the police were coming in and said we can't enforce it. why is that? because they had a hard time measuring consent, evaluating what does -- >> what kind of a record do they need? could -- could there be a state law that says no picketing around any -- you can never have a picket around any store to try to prevent people -- to tell
people don't go -- don't patronize this store. could they do that? isn't that thornhill v. alabama? >> right. and what actually, in thornhill, they struck that down. >> right. >> but it was very different from this statute. thornhill's was you can't go anywhere near the facility and it was -- it was only one type of speech. this is content neutral and it is -- it is a narrow buffer zone. justice kagan, i really urge you to because -- >> well, i mean, i understand. stop. i'll ask this one more time. >> yes. >> i think it's -- i understand the -- the desire to create a buffer zone around certain sensitive facilities. what i'm asking is what requirements, if any, does congress or a state legislature have to meet before they can do that? if it is done, do we simply say they -- they have a rational basis for it and that's it, so they can establish basically a buffer zone around any kind of a facility they want. if not, then what needs to be established? >> so, your honor, i think in the evidentiary realm, it's hard to have hard-and-fast rules.
i would say you would need a lengthy history of serious congestion and other problems and -- and a some sort of showing that the alternatives weren't working, but that's what's here. this problem has been going on in massachusetts since 1994. this is not something the legislature woke up one day and said in light of one incident, we're going to -- to deal with this. they tried other things. they -- and the evidence therefore, supported this. what would it take to support a broader statute? it's hard for me to say, but i think this record shows. >> one more thing. what about the example of a strike? there certainly is a long history of labor violence in places where there are replacement workers. could that -- could it be done in that situation across the board? >> so i think that would be a very broad statute and hard -- hard to defend. but if there were before the legislature, as there is in this case, the kind of congestion -- and the solution, i submit, is much narrower than the petitioners are suggesting. it is to clear out an area around the entrance.
>> justice kagan, the testimony is 22 feet from the entrance in boston, 22 feet from the edge of the doorway to the edge of the -- of the buffer zone. it is from me to the marshal. it is not to the back of the courtroom. it is -- it is an nba 3-point zone. >> but i understand you're saying the reasonableness of it. >> but go back to justice alito's first question. maybe we can make some progress here. the regulation of labor is up to the nlrb. all right. now, the nlrb does regulate picketing. it does say what you can do and can't do, and the courts have reviewed that. and you -- what standard do courts use when the nlrb decides, in its wisdom and expertise, well, the pickets can go here, but they can't go there. you can do this, but you can't do that. all of which have speech implications. what standard of review do the courts use? >> your honor, i am not aware of the standard they use, but it is a -- >> are you aware of any case -- i'm putting it -- loading it because -- only because to show
my ignorance of it -- where the standard has differed from the ordinary apa standard? >> i'm not, your honor. i'm not aware of cases one way or the other. >> should we create a new standard for reviewing this kind of regulation? i think that's actually a serious question. >> i don't think so, your honor. thank you. >> thank you, counsel. mr. rienzi, you have three minutes remaining. >> thank you, mr. chief justice. several points. first, it's not impossible to draw a statute to deal with the problems. 49 other states deal with the alleged problems. the next prosecution massachusetts institutes for blocking a door will be its first in at least two decades. >> is that true, mr. rienzi? is massachusetts' statute the only one of this kind? >> it is the only state statute of its kind. there are a few municipal statutes of -- that are similar that are, frankly, based on the first circuit decisions in this case. secondly, here, the police officers testified that they know all the regular players at the clinics. that's their testimony. they know them all. well, if you know them all and if they're congregating in the doors and they need to get out
of the doors, you should go to court and get an injunction and say, stay out of the doors. until they do that, the claim that they have to throw their hands up and put people in prison for peaceful speech is not a very persuasive claim. secondly, all of the evidence that the united states cited -- cited you to from the record all of it, boston, saturday mornings. the claim that the legislature can extrapolate from that to ban peaceful speech in boston at other times when the sidewalk is empty, and at other clinics where the sidewalk is empty 16 and say, well, there's abortion there, and where there's abortion, we expect certain speech problems, therefore we're going to make it illegal to speak there. that's the state's claim here. the evidence is boston specific. the first amendment requires precision. they need to regulate the problem where it happens and if that means police officers, if that means dispersal laws, if that means actually bringing a face prosecution, which the united states has never done they ought to do that. but they shouldn't imprison mrs. mccullen for her speech. third, the united states mentions -- >> are you questioning the government's representation?
i haven't looked at face. >> is it limited to the three situations, to -- to murder, arson and chaining? >> thank you, your honor. no, it is not. the statute is not remotely limited to that. i direct the court to section c -- i'm sorry, section -- it's the definitions section of the statute. definition 4, physical obstruction, includes even making entry unreasonably difficult. it is not at all solely for violence. it's for physical obstruction even making it unreasonably difficult. counsel said that they brought 45 cases across the country. that's true. zero, zero in massachusetts. they shouldn't be able to restrict the peaceful speech. lastly, to the extent the court feels the need to recognize that there are some situations that are so extraordinary that we should put people in prison for peaceful conversations on public streets, that ought to be the exceptional case where the statute passes strict scrutiny and the state actually has tried the solutions that it claims don't work. that is not this case. the government does not claim
its restriction to pass strict scrutiny. they didn't say it would be impossible. they said it would be hard. 49 other states do different things. the federal government protects peaceful speech in the face law. face is a great example of something that deliberately gets at the problem and if somebody's in the doorway and they need to get out of the doorway, the answer is, sir, please get out of the doorway. it is not dragging mrs. mccullen off to prison because she has a consensual conversation 25 feet away from the doorway. that's an extraordinary power for the government to ask to selectively control speech among willing participants on public sidewalks. thank you very much. >> thank you, counsel. the case is submitted. >> massachusetts senator ed markey spoke on the senate floor about the stream -- the supreme court's decision striking down his states abortion clinic offers owns. >> thank you, madam president. decided that a woman's right to choose was constitutionally protected
women's health clinics across the country have been targeted by violence and other criminal activities by extremists. the crimes are alarming. harassment arson acid attacks obstruction, violent threats and even murder. women's safety has been repeatedly put at risk simply for exercising a constitutional right. in the past ten years there have been approximately 75,000 incidents of violence against abortion providers in the united states. and that is unacceptable. we should always remember that each of these victims of violence has a name, a family, a story. in 1994, a gunman killed two people and wounded five others at a clinic in massachusetts. one of these victims was 25-year-old shannon lowny daughter of a public school teacher, beloved sister and volunteer who worked
domestically and internationally with poor families and children. shannon worked as a receptionist and spanish translator at planned parenthood in brook line massachusetts. she worked there not for the pay but because she fundamentally believed women had a right to affordable health care. she wanted to do her part to ensure that patients at a vulnerable stressful time in life were greeted with a smile. five days after christmas in 1994, she was fatally shot in the neck at planned parenthood by an extremist protester. shannon's story is just one of the many tragedies caused by violence against women exercising their rights. in 2007, after the laws on the books provided inadequate massachusetts ensured that there would be fair and balanced laws that create add buffer zone of 35 feet around the entry of
reproductive health care facilities. this law was intended to protect people like shannon and the thousands of women and staff who visit and work at clinics. the buffer zone law worked. massachusetts women could exercise their fundamental right to health care without running a gauntlet of abuse. according to a survey of reproductive health care centers across the country a majority of facilities with buffer zones experienced a decrease in criminal activity after the buffer zone was instituted. today the supreme court of the united states took away those buffer zones of safety when it struck down the massachusetts buffer zone law effectively undoing the historic pro grez we have made in en-- progress we have made in ensuring that women are protected when accessing reproductive health care and exercising their constitutional rights. today's supreme court ruling puts women at risk simply for exercising their constitutional
rights. shannon's brother liam visited me on the day that this case was argued before the supreme court. their family is representative of what has happened across this country in terms of the endangerment of women when they seek to exercise their constitutional rights. so today is a sad day. not just a sad day for america but in particular for shannon's family, because they put a lot on the line to ensure that this case was brought before the supreme court of the united states. the court's decision makes it more difficult for states to guarantee women's reproductive rights more likely that acts of violence and intimidation against women seeking reproductive health care will occur. with reproductive rights under attack, it is
imperative that we assure the basic safety of all women and staff at planned parenthood and other health facilities. we should be expanding access to safe reproductive health care for women not restricting it. and that is, unfortunately what today is ghg going to represent in the history of health care for women in our country. you, madam president are a national leader on these issues, fighting for the rights of women. and i stand with you and i stand with the other members of the senate but more importantly just ordinary families across this country who along with planned parenthood and all women in massachusetts and this country, who believe that every woman seeking reproductive health should be safe and protected.